Early Mesopotamian Law Versteeg Fmt 11/13/01 1:40 PM Page Ii Versteeg Fmt 11/13/01 1:40 PM Page Iii

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Early Mesopotamian Law versteeg fmt 11/13/01 1:40 PM Page ii versteeg fmt 11/13/01 1:40 PM Page iii

Early Mesopotamian Law

Russ VerSteeg

Carolina Academic Press Durham, North Carolina versteeg fmt 11/13/01 1:40 PM Page iv

For my wife, Nina, with love.

Library of Congress Cataloging-in-Publication Data Early Mesopotamian law / Russ VerSteeg p. cm. Includes bibliographical references and index. ISBN 0-89089-977-0 1. Law, Assyro-Babylonian. 2. Law, Sumerian. 3. Law, Ancient. 4. Law—Iraq—Sources. I. VerSteeg, Russ.

KL706.5 .E27 1999 340.5'35—dc21 99-048806

Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 E-mail: [email protected] www.cap-press.com

Printed in the United States of America. versteeg fmt 11/13/01 1:40 PM Page v

Contents

Preface xi Maps xv Photographs xvii

Part I Overview, Justice, Organization and Procedure

Chapter 1 Introduction 3 § 1.1 Scope & General Approach 3 § 1.2 Synthetic Approach 4 § 1.3 A Word of Caution Regarding “Sources For Mesopotamian Law” 7 § 1.4 Formulaic Patterns in Mesopotamian Legal Documents 10 § 1.5 Summary 12

Chapter 2 The Law Collections (“Codes”) 13 § 2.1 Overview 13 § 2.2 Urukagina’s (Uru-Inimgina’s) Reforms 18 § 2.3 Ur-Nammu 19 [A] Introduction 19 [B] Outline of the Provisions 21 [C] Values Promoted and Interests Protected 22 § 2.4 Lipit-Ishtar 24 [A] Introduction 24 [B] Outline of the Provisions 25 [C] Values Promoted and Interests Protected 26

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§ 2.5 Eshnunna 27 [A] Introduction 27 [B] Outline of the Provisions 28 [C] Values Promoted and Interests Protected 29 § 2.6 The Laws of Hammurabi 30 [A] Introduction 30 [B] Outline of the Provisions 32 [1] Procedure (¶¶ 1–5) 33 [2] Property (¶¶ 6–25) 34 [3] Military (¶¶ 26–41) 34 [4] Land & Agriculture (¶¶ 42–65) 34 [5] Miscellaneous GAP Provisions (29 Sections, GAP ¶¶ a-cc) 35 [6] Principal-Agent; Women Inkeepers (¶¶ 100–112) 35 [7] Debts & Bailment (¶¶ 113–126) 35 [8] Family Law (¶¶ 127–195) 36 [9] Personal Injury (¶¶ 196–214) 36 [10] Professional Wages and Liability (¶¶ 215–277) 37 [11] Sale of Slaves (¶¶ 278–282) 37 [C] Speciﬁc Legal Principles 38 [1] Contracts 38 [2] Sales 38 [3] Social Insurance 38 [4] Property 38 [5] Women 38 [6] Torts 39 [7] Debts 39 [8] Business Law 39 [9] Procedure 39 [10] Inheritance 40 [D] Values Promoted and Interests Protected 40 versteeg fmt 11/13/01 1:40 PM Page vii

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Chapter 3 Justice & Jurisprudence: The Role of Law 43 § 3.1 Introduction 43 § 3.2 Mythological Foundations of Jurisprudence 44 § 3.3 Mı¯sˇarum 45 § 3.4 Jurisprudence in the Law Collections 48

Chapter 4 Legal Organization & Personnel, & Legal Procedure 51 § 4.1 Organization & Personnel 51 [A] The Role of the “Assembly” as an Early Court 51 [B] Judges & “Courts” 53 [C] Jurisdiction of Judges and Royal Jurisdiction 55 § 4.2 Lawsuits: Trial Procedure 57 § 4.3 Evidence 59 § 4.4 Witnesses & Perjury 61 § 4.5 Enforcement of Judgments 62

Part 2 Substantive Law

Chapter 5 Personal Status 65 § 5.1 Citizenship & Status in General 65 § 5.2 Women 67 § 5.3 Slaves 69

Chapter 6 The Family 77 § 6.1 Introduction 77 § 6.2 Marriage 78 [A] Entering and Maintaining Marriage 78 [B] Protection of Marriage for Soldiers 84 [C] Polygamy & Fidelity in Marriage 86 [D] Special Marriage Rights of Certain Women 87 § 6.3 Divorce 87 [A] General 87 [B] Grounds for Divorce 89 versteeg fmt 11/13/01 1:40 PM Page viii

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[C] Divorce Payments 90 § 6.4 Parents, Children, & Caregivers 92 [A] Child Custody & Adoption 92 [B] Child Conduct & Property of Children 94

Chapter 7 Inheritance & Succession 97 § 7.1 Introduction 97 § 7.2 Order of Succession: Sons First 98 § 7.3 Inheritance by a Wife 100 [A] Death of Husband — Wife Inherits Life Estate 100 [B] “Sealed Document” 101 [C] A Special Circumstance 101 § 7.4 Inheritance by Female Child 101 § 7.5 Death of Wife — Inheritance by her Children 103 § 7.6 Inheritance by Children Where Remarriage Occurs 104 § 7.7 Children of Female Slaves & Free Males 104 § 7.8 Wills 105

Chapter 8 Criminal Law 107 § 8.1 Introduction 107 § 8.2 Homicide 108 § 8.3 Theft Crimes 111 [A] Introduction & General Provisions 111 [B] Selling Goods Under False Pretenses & Theft by Fraud 115 [C] Black Market Resale 115 [D] Embezzlement 117 § 8.4 Sex Offenses 118 [A] Rape & Incest 118 [B] Adultery 119 § 8.5 Military Crimes 122 § 8.6 “Criminal” Trespass & “Criminal” Negligence 122 § 8.7 False Witness/Perjury 124 versteeg fmt 11/13/01 1:40 PM Page ix

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§ 8.8 Miscellaneous “Crimes” 125 [A] Religious Offenses 125 [B] Witchcraft 125 [C] False Imprisonment/Kidnapping 125 [D] Harboring Criminals 126 [E] Bribery 126 § 8.9 Punishments 126

Chapter 9 Torts 129 § 9.1 The Problem of Categorization (Battery, Negligence, Strict Liability) 129 § 9.2 The Inﬂuence of “Status” on Tort Damages 131 § 9.3 Catalogue of Torts & Compensation 132 § 9.4 Actual Warnings of Foreseen Dangers 134 § 9.5 Failure to Maintain Property That Damages Another & Damage to Property 135 [A] Property That Damages Another 135 [B] Damage to Property 137 § 9.6 Liability for Damage Caused by Oxen 137 § 9.7 Physician’s Liability 139 § 9.8 Defamation Relating to Sexual Misconduct 140 § 9.9 Affirmative Defenses to Tort: Assumption of Risk & Contributory Negligence 140

Chapter 10 Property 143 § 10.1 Introduction: Private Property, Agriculture, and Irrigation 143 § 10.2 Sale of Land, Prices, Deeds & Recordation of Real Property 145 § 10.3 Lease of Fields 149 § 10.4 Gardeners 151 § 10.5 Liability of an Owner of Real Property & Trespass 152 § 10.6 Slaves 153 versteeg fmt 11/13/01 1:40 PM Page x

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§ 10.7 Miscellaneous 157 [A] Acquisition of Property Through Paying Taxes 157 [B] Adjacent Property Owners 157 [C] Ancestral Property 157 [D] Restrictive Covenants 158 [F] “Ancient Kudurrus” & Kudurrum 158

Chapter 11 Trade, Contracts, & Business Law 161 § 11.1 Trade 161 [A] Early Foreign Trade 161 [B] Foreign & Domestic Trade During the Time of the Great Law Collections 163 [C] The Market & Merchants 167 [D] Spread of Cuneiform & Link to Trade & Culture 167 § 11.2 Contract Law 168 [A] Introduction 168 [B] Formalities: Seals, Witnesses, Oaths, & Clay Envelopes 169 [C] Capacity to Contract 171 [D] Contracts Void Due to Public Policy 172 [E] Bailment Contracts 172 [F] Contracts on an International Scale: Treaties 175 [G] Miscellaneous Contract Rules 177 [1] Implied Warranties 177 [2] Order of Performance & Time for Payment 178 [3] Consignment 178 [4] Excuses for Non-Performance of a Contract: Contracts Voidable Due to Impossibility or Impracticability 178 [H] Remedies for Breach of Contract 179 § 11.3 General Business Law 182 [A] Agency 182 [B] Business Organizations 183 [C] Debtor-Creditor Law 186 versteeg fmt 11/13/01 1:40 PM Page xi

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[D] Interest Rates 189 [E] Weights, Measures, & Media of Exchange 190 [F] Wages, Prices, & Fixed-Price Rentals 191 [G] Taxes 194 Bibliography 197 Index to the Law Collections 203 General Index 213 versteeg fmt 11/13/01 1:40 PM Page xii versteeg fmt 11/13/01 1:40 PM Page xiii

Preface

Nearly a century has passed since archaeologists first discovered the now famous stela of the Laws of Hammurabi. Subsequently, other, earlier law collections from ancient Mesopotamia have also been unearthed and trans- lated. Apparently, the people who inhabited the area in the vicinity of the Tigris and Euphrates rivers (roughly modern-day Iraq) about five thou- sand years ago were the first on earth to write down “laws” and to impose a semblance of order on the discipline that we today call “law”.The principal goal of this book is to provide an introduction to law in ancient Mesopotamia during its formative stages —roughly 3000 b.c. (the dawn of “history”) to 1600 b.c. (the sunset of the Old Babylonian period). In other words, generally speaking, this book looks at the first development of law in human history. Specifically, it surveys the famous law collections (e.g., the Laws of Hammurabi, the Laws of Ur-Nammu, the Laws of Lipit-Ishtar, etc.), legal procedure, jurisprudence (i.e., legal philosophy), and “substantive law” (e.g., property, torts, and contracts). I feel compelled to explain several things by way of my personal background. I am a lawyer and law professor, not an Assyriologist. Therefore, I do not bring to the table a first-hand knowledge of the primary sources. I do, however, have a reasonably sound background in ancient history and ancient legal systems. As an undergraduate, I majored in Latin, and I took numerous courses relating to ancient history and ancient civilizations. An Assyriologist, Dr. Ronald Sack,taught the first ancient history course that I took in college.I have always suspected that he devoted an unusually gener- ous portion of our syllabus to the study of ancient Mesopotamia.1 After college, I taught both Latin and Ancient History at the high school level for five years before going to law school. During the summer of 1982, I took a class on the Cultures of the Ancient Near East at my alma mater, the Uni- versity of North Carolina at Chapel Hill, with Dr. Jack Sasson. While teach-

1. Our “general survey” of ancient history concluded at the end of the Third Punic War!

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ing high school, I studied Middle Egyptian under Dr. Edmund Meltzer for two semesters (also at UNC-CH). Thus, before law school,I had been both a student and teacher of ancient languages and civilizations. In law school, I studied Roman Law (an obvious choice for someone with my background), and I wrote three papers relating to ancient law and/or Latin that were eventually published.2 Since I began teaching law, I have written four articles that relate directly to ancient law: Law in Ancient Egyptian Fiction,3 A Contract Analysis of the Trojan War,4 Early Meso- potamian Commercial Law,5 and The Roman Law Roots of Copyright.6 I have twice taught a seminar entitled “Law in the Ancient World”at New England School of Law in Boston, Massachussets. Several years ago, I began work on a project that I intended to be a general survey of ancient law (i.e., with chapters on law in ancient Mesopotamia, Egypt, Greece, and Rome). When I began doing research on Mesopotamia, I was surprised to discover that, unlike the case with both ancient Greek law and ancient Roman law, there were no general introduc- tory texts on Mesopotamian law. I found myself reading articles, books, and doctoral dissertations that addressed specific aspects of Mesopotamian law (e.g., the Laws of Hammurabi, Old Babylonian Marriage Law, Property law), but I could not find a general “survey.” As a consequence, after re- searching ancient Mesopotamian law for a year, I realized that I had begun to accumulate so much material that it deserved to be more than just a cou- ple of chapters in a general book about ancient law. It was then that I ap- proached Keith Sipe at the Carolina Academic Press about the possibility of writing the present work. From the first moment that I suggested it to Keith, he has been entirely supportive. Consequently, I put aside my work on the “general ancient legal history,”7 and devoted myself completely to working on ancient Mesopotamian law. After writing an initial draft, I en-

2. The paper that I wrote for my Senior Thesis was eventually published in the Journal of Legal History, Law and the Security of Homeric Society, 10 J. Legal Hist. 265 (1989).A paper that I wrote for my Advanced Contracts class was published in the Whittier Law Review, From Status to Contract: A Contextual Analysis of Maine’s Famous Dictum, 10 Whittier L.Rev. 669 (1989). My book, Essential Latin For Lawyers (Carolina Academic Press 1990) began as an independent study project under the direction of my Roman Law professor, Dr. Olympiad Ioffe. 3. 24 Ga. J. of Int’l and Comp. L. 37 (1994). 4. 40 Arizona L. Rev. 173 (1998). 5. 30 U. Tol. L. Rev. 183 (1999). The content of this ar ticle is substantially the same as chapter 11 and portions of the introduction in this book. 6. 59 Maryland L. Rev. (forthcoming 2000). 7. I still hope to complete that project, so please stay tuned. versteeg fmt 11/13/01 1:40 PM Page xv

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listed the help of three Assyriologists (two of whom are specialists in ancient Mesopotamian law) who read the manuscript and gave me very helpful feedback: my former professor, Dr. Ronald Sack at North Carolina State University; Dr.Martha T.Roth at the Oriental Institute, University of Chicago; and, Dr. Raymond Westbrook at Johns Hopkins University. I owe sincere thanks to each of them for taking the time to read the manuscript, and for making the effort to provide insight and helpful suggestions for im- proving the manuscript. All errors and omissions must be regarded as mine, not theirs. Thus , al t h o u g h I have not been trai n e d as an Ass y rio l o gis t , I bring to the pres e nt work an abiding interest in the civil i z a ti o ns of the Anc i e nt Nea r Ea s t , le gal trai n i n g , and exp erien c e tea ching and writ ing abou t ancient legal sys t ems . My aim has been to crea t e a conc i s e , accu ra te , and read a b le introduc tio n to early Mes o potamian law that can be useful and informa t ive for in t eres t ed laypers on s ,u n derg radua te s , gradua t e stud ent s , and scho l a r s alike. In an eff ort to reduc e the conf u s i o n caused by the mul ti tu d e of vari a n t sp elli n g s of an c i e nt words , I have standardi z ed most of the spell i n gs , in quo t ed as well as orig inal materia l . I would be remiss if I failed to acknowledge the assistance of certain people who have helped in a number of ways. I have already mentioned the help given by Dr. Ronald Sack,Dr.Martha T.Roth,and Dr. Raymond West- brook. They read and criticized the manuscript in an early iteration. In ad- dition,I would like to thank the library staff at New England School of Law for their patience and perseverance in tracking down obscure articles, books, and doctoral dissertations. In particular our Reference Librarian, Barry Stearns always went out of his way to be helpful. Michael Kozuh, an assistant on the Chicaco Assyrian Dictionary, and Dr.Roth did a great deal of work to help standardize the spellings of Old Babylonian words and terms. I very much appreciate the advice and ideas contributed by my edi- tor, Tim Colton, at Carolina Academic Press. Thanks are also due to my family, Nina, Whitney, and Carl, for their patience and understanding. My daughter, Whitney, helped me with the arduous task of indexing, and for that I am deeply grateful.

R.V. London September, 1999 versteeg fmt 11/13/01 1:40 PM Page xvi